dissenting.- I am unable to concur with my brethren in the conclusions they have reached in this case, and will state very briefly the,reasons of my dissent. And first, as I understand it, there is nothing in the record tending to show that the railway company was endeavoring to get possession of its road, or that the construction company for any reason was refusing to surrender the possession, or that the railway company'was refusing to receive possession on account of any failure to complete the construction and equipment of the road to Holton, (then and since the only portion of the road constructed,) or that an abundance of time had not elapsed since the completion of that portion of the road for examination and surrender. The instruction certainly contemplates none of these things. Neither was there any testimony tending to show a lease, or anything of that nature. All I understand the instruction to say is, that a *42railway corporation receiving a franchise from this state, with the high and peculiar privileges attaching to corporations, incorporated to discharge a public duty, as well as to subserve a private benefit, cannot shift upon others the duty and responsibility of a personal exercise of the corporate powers granted, except in the cases and under the conditions specified in the statute. It may contract for the construction of its road. It may lease, the road, when constructed, to another corporation whose road with its own will make a continuous line. ^Laws of 1870, ch. 92, §§2 and 3.) But it cannot avoid responsibility by simply permitting another party, neither contractor nor lessee, to assume charge of the immediate running of the road. I think the judgment should be affirmed.
Judgment reversed.